Many employers will have noted the decision last month where a federal court in California held that approximately 65,000 class members could maintain a class action against J.C. Penney’s under California law. That lawsuit challenges the company’s policy that employees forfeit accrued vacation benefits on termination. The issue in this decision was whether the plaintiffs met the commonality tests that allow a matter to be advanced as a class action rather than as a series of individual actions – individual actions that likely would not…

As social networking has become entrenched as a tool for doing business and not just a pastime of our social lives, employers, government agencies, and even academia have taken big steps in 2014 to define how social media can and cannot, or should and should not, be used. Below is a summary of some of the big developments in social media in the workplace this year. The EEOC Turns Its Attention to Social Media The Equal Employment Opportunity Commission has turned its attention toward…

This week U is for under utilized – the readily available liability prevention tools that, in our estimation, employers most often neglect to use to their advantage. The extra step. Before terminating an employee with a medical issue, that is. As we have written here and here, much FMLA and ADA liability is preventable if you will methodically work through the communications steps that years of case law tells us courts are looking for. The sooner you start, the sooner you can finish. I…

The employer throws a holiday party as a chance for its employees to interact with one another on a more social level, have an opportunity to get to know significant others and reward the team for a year of hard work. Unfortunately, this holiday celebration mixed with alcohol and far less formal interaction between colleagues can lead to both employers and employees doing a collective post-party shout of “Oh No!” For whatever reason, there seems to be a loss of good sense and responsibility…

This week’s letter T is for trade secrets, and five things every employer should know about them. Nearly everybody has them. As I wrote here, if there is information you would not want your competitor to have, you should at least be talking to your lawyer about whether they may be trade secrets and, if so, what do you need to do to protect them. The key point of trade secret law is that, in order to have the legal protections of a…

An employee who breaks company policies may be disciplined even though that employee previously engaged in protected activity. This proposition may sound uncontroversial, but some bad-acting employees do try and shield themselves from discipline by pointing to earlier instances of protected activity. They may argue that subsequent discipline, while ostensibly based on legitimate reasons, is in fact retaliatory. Some employees may strategically engage in so-called protected activity solely for the purpose of preempting discipline they see coming. In Musolf v. J.C. Penney Co., a case…

On Sept. 30, 2014, the Colorado Supreme Court heard oral arguments in Coats v. Dish Network, a wrongful termination case centered on use of medical marijuana. In 2000, Colorado passed a law permitting medical marijuana and legalized marijuana for recreational use in 2012, but the drug is still prohibited under federal law. Dish Network LLC fired Plaintiff Brandon Coats after he tested positive for the active ingredient in marijuana. Mr. Coats was aware Dish Network had a zero tolerance policy for prohibited substances, including…

California retail establishments with operations in San Francisco should prepare to comply with the new “Predictable Scheduling and Fair Treatment for Formula Retail Employees Ordinance” law, dubbed the “Retail Workers’ Bill of Rights” by its proponents. This new law, which is the first of its kind in the United States, applies to “formula retail establishments” and their contractors, and requires them to provide employees with advance notice of work schedules, compensation for last-minute schedule changes and on-call shifts, and equal treatment of part-time and full-time…

In a case pending in California federal court, Uber is arguing that its drivers are not employees. O’Connor et al. v. Uber Technologies, Inc. et al., No. 3:13-cv-03826 (N.D. Cal. filed Aug. 16, 2013). Uber drivers have sued the company in a putative class action that alleges that they were short-changed because they received only a portion of the 20 percent gratuity paid by passengers. In response, Uber recently filed a motion for summary judgment that argued that its drivers are not employees because…

We spend a lot of time coming up with timely and cutting edge topics for seminars, webinars, and blog posts for employers. However, for years no topic attracts more continuing interest than old fashioned sexual harassment, seemingly a timeless topic because some (mostly) guys can be counted on not to manage their behavior in the workplace. This week S is for sexual harassment, and a recent case that is a good reminder of some key points about sexual harassment. The case is Boone v….